Com. v. Sims, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MADENA SIMS :
: No. 377 WDA 2020
Appellant :
Appeal from the Judgment of Sentence Entered February 10, 2020
In the Court of Common Pleas of Allegheny County at
No(s): CP-02-CR-09334-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MADENA SIMS :
:
Appellant : No. 378 WDA 2020
Appeal from the Judgment of Sentence Entered February 10, 2020
In the Court of Common Pleas of Allegheny County at
No(s): CP-02-CR-09333-2019
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 19, 2021
Madena Sims (Appellant) appeals from the judgments of sentence
entered in the Allegheny County Court of Common Pleas, at two related
dockets (as detailed infra), following a waiver trial and convictions for
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* Retired Senior Judge assigned to the Superior Court.
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disorderly conduct.1 Appellant’s court-appointed counsel, James Baker,
Esquire (Plea Counsel)2, has filed a petition to withdraw from representation
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).3 We grant Plea
Counsel’s petition to withdraw, and affirm Appellant’s judgments of sentence.
I. Facts & Procedural History
Appellant and Stella Henderson (Complainant) are neighbors in a
multistory apartment building.4 N.T. Trial, 2/10/20, at 23. Appellant resides
on the third floor of the building, while Complainant occupies a unit on the
first. Id. Tensions between the former friends grew following two separate
events: the first, a physical altercation in which Appellant’s finger was broken;
and the second, a dispute involving the parties’ trash cans. Id. at 15, 25, 35,
77. At the time of the events herein, Appellant was subject to a no-contact
order, imposed as a result of the parties’ trash dispute. Id. at 15-16, 26. On
July 15, 2019, at approximately 10 o’clock in the morning (Workplace
Incident), Complainant was leaving for work when she encountered Appellant,
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1 18 Pa.C.S. §§ 5503(a)(1), 5503(a)(4).
2Plea Counsel serves as an Assistant Public Defender at the Office of the Public
Defender, Allegheny County.
3 Collectively referred to as “Anders Brief.”
4Appellant was known to the Complainant as “Angel.” N.T. Trial, 2/10/20, at
66 (“Well, I don’t know her as Stella, I know her as Angel.”).
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who “was out her [third story] window waiting for [Complainant] to come
outside[.]” N.T. Trial, at 24. Appellant yelled at Complainant to “get [her]
garbage.” Id. She then began calling Complainant “B-I-T-C-H’s and saying
[Complainant was] a home wrecker[.]” Id. Complainant testified, Appellant
then “pulled her breast out and licked [it] at me. And then [Appellant] got on
the phone with her daughters and told her daughters, ‘Come get this B-I-T-
C-H, I’m tired of her.’” Id. at 25-26, 27-28. Complainant claims she did not
respond, continued towards her vehicle, and left for work. Id. 26, 28.
Approximately 20 minutes later, one of Appellant’s daughters arrived at
Complainant’s workplace and began a conversation with Complainant on the
sidewalk. N.T. Trial, at 28. Appellant arrived moments later with a second
daughter “to jump” Complainant. Id. at 28-29. “[T]hings started getting a
little hostile[,]” so Complainant withdrew to the inside of her workplace. Id.
at 29, 42. Complainant’s boss, as well as a friend who had been walking by
at the time, blocked Appellant and her daughters from entering the store. Id.
at 29, 43. Tensions flared between the parties after Appellant “spit on
[Complainant’s] boss, three times[,]” and Complainant “shook up a two liter
bottle [of soda]” and threw it at Appellant. Id. at 43. Afterwards, Appellant
and her daughters left, and Complainant called the police. Id. at 43, 44.
Later that night, in the early morning hours of July 16, 2019,
Complainant heard Appellant and a friend return to Appellant’s third floor
apartment (2AM Incident). N.T. Trial, at 30. Complainant testified she went
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outside to speak with friends, who had “heard about [Appellant and her friend]
coming to fight [Complainant], so they came to [Complainant’s] house to see
if [she] was okay[.]” Id. At which time, Appellant began yelling from her
third floor window. Id. The argument caused a disturbance loud enough to
prompt a neighbor to phone the police. Id. Sargent John Snyder of the
Wilkinsburg Police Department responded to the scene at roughly 2 o’clock in
the morning. Id. at 11. While questioning two pedestrians, Sgt. Snyder heard
“yelling and screaming coming from around the corner.” Id. Upon arrival to
the apartment building, Sgt. Snyder testified “[Complainant] was talking back,
but the majority of the yelling, the profanity, the vulgarity was coming from
the third-floor window[.]” Id. Sgt. Snyder also testified that while he spoke
with Complainant outside, Appellant continued “yelling out the windows
profanity, nasty stuff. No threats or hates, just nasty stuff . . . calling
[Complainant] a bitch, nasty ho, whore[,] that kind of stuff.” Id. at 13, 31.
Appellant would not answer the door when Sgt. Snyder attempted to speak
with her. Id. at 13-14.
Later that afternoon, again, the parties became disputatious (Phone
Incident). N.T. Trial, at 32. Complainant was sitting on her porch when
Appellant arrived home and allegedly confronted her. Id. at 32. Complainant
called the police again. Id. Complainant testified the police spoke to both
her and Appellant. Id. at 32-33. Not ten minutes after police left,
Complainant alleges to have received a telephone call from Appellant using an
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unlisted number. Id. at 33-34. The caller told Complainant, “You know you’re
getting your ass whooped, right?” Id. at 34. Complainant claims to have
received numerous calls from an unlisted number in the past, all of which she
attributes to Appellant. Id. at 34, 35-37.
Charges against Appellant were filed in the Court of Common Pleas of
Allegheny County at two separate dockets. On October 4, 2019, Appellant
was charged at trial docket CP-02-CR-0009333-2019 (Docket 9333) with
indecent exposure, disorderly conduct, and harassment with respect to the
Workplace and 2AM incidents.5 On October 8, 2019, Appellant was separately
charged with terroristic threats and harassment at docket CP-02-CR-09334-
2019 (Docket 9334) with respect to the Phone Incident. 6 On February 10,
2020, the charges proceeded to a consolidated waiver trial. Prior to the
commencement of trial, the Commonwealth withdrew Appellant’s charge for
indecent exposure. N.T. Trial, at 3. At the conclusion of trial, Appellant’s
remaining charges at Docket 9333 were amended to separate counts of
summary disorderly conduct.7 Id. at 91-92. Likewise, Appellant’s harassment
charge at Docket 9334 was also amended to one count of summary disorderly
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5 18 Pa.C.S. §§ 3127(a), 5503(a)(1), 2709(a)(1), respectively.
6 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1).
7 18 Pa.C.S. § 5503(a)(1).
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conduct.8 Id. Then, at Docket 9333, Appellant was found guilty of summary
disorderly conduct under subsection 5503(a)(1) on two counts. Id. at 93. At
Docket 9334, Appellant was found not guilty of terroristic threats and guilty
of summary disorderly conduct pursuant to subsection 5503(a)(4). Id. at 93.
A sentencing hearing was held immediately following announcement of the
verdicts. N.T. Trial, at 93. At Docket 9333, Appellant received an aggregate
sentence of 180 days’ non-reporting probation, one 90 day term for each of
her two disorderly conduct convictions. See Amended Sentencing Order,
3/17/20. She was also ordered to pay summary court costs of $574.49. Id.
At Docket 9334, Appellant was also sentenced to 90 days’ of non-reporting
probation, to run concurrently with her sentence at Docket 9333. Id. As a
condition of her probation, Appellant was ordered to have no contact with
Complainant. Id.
On March 9, 2020, Appellant submitted an untimely post-sentence
motion along with a Petition to Accept Post-Sentence Motion Nun Pro Tunc
(NPT Petition). In the NPT Petition, Appellant’s trial counsel stated he was
notified by Appellant three days prior “that she desired to file a post-sentence
motion.” Petition to Accept Post-Sentence Motion Nun Pro Tunc, 3/9/20, at 2.
Counsel concluded “a weight of the evidence claim must be raised on
[Appellant’s] case[,] and to deny the NPT Petition would be to “den[y
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8 18 Pa.C.S. § 5503(a)(4).
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Appellant] her absolute[,] constitutional right to a direct appeal[.]” Id. at 3,
4. The next day, on March 10, 2020, Appellant’s NPT Petition was denied, as
was her post-sentence motion. See Orders, 3/10/20.
On March 11, 2020, Appellant filed timely notices of appeal from each
of her dockets.9 Appellant was ordered to file a Pa.R.A.P. 1925(b) concise
statement, which she timely filed on June 1, 2020.10 In the concise statement,
Plea Counsel averred he was unable to discover any non-frivolous appealable
matters and stated his intention to file an Anders brief and motion to
withdraw his representation. Appellant’s Concise Statement of Errors
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9 Appellant has thus complied with Pa.R.A.P. 341(a) (“[A]n appeal may be
taken as of right from any final order of a government unit or trial court.”),
and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (“[W]hen a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed.”).
10 Appellant’s Pa.R.A.P. 1925(b) concise statement was originally due April 2,
2020. See Order 3/12/20. However, owing to the COVID-19 crisis, a judicial
emergency was declared in the Fifth Judicial District of Pennsylvania and filing
deadlines were suspended from March 16th through June 1, 2020. See
Amended Fifth Judicial District Emergency Operations Plan, No. 23 WM 2020,
5/28/20, at 6. Appellant’s deadline to file her concise statement was thus
extended from April 2, 2020, to June 19, 2020, pursuant to the court’s
amended operations plan. Id. (“New deadlines shall be calculated by adding
[78 days] to the original deadline.”). Nevertheless, we acknowledge
Appellant’s diligence. On April 28, 2020, before the expiration of the court’s
original suspension of filing deadlines, Appellant submitted a request for an
extension of time to file her Pa.R.A.P. 1925(b) concise statement. See
Petition for Extension of Time to File Concise Statement of Errors Complained
of on Appeal, 4/28/20. Appellant’s petition was granted by order of the trial
court and her filing deadline was extended to June 1, 2020. See Order,
4/30/20.
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Complained of on Appeal, 6/1/20, at 3. Appellant’s concise statement also
asserts a challenge to the weight and sufficiency of the evidence. Id. at 3-4.
On June 29, 2020, the trial court filed a Pa.R.A.P. 1925(a) supplemental
opinion. Appellant’s cases were consolidated sua sponte by order of this
Court. See Order, 3/18/20. On October 1, 2020, Plea Counsel filed a Petition
for Leave to Withdraw and accompanying Anders brief. To his brief, Plea
Counsel attached a letter sent to Appellant explaining her options to either
“discontinue [the] appeal[,] . . . hire private counsel to prepare an alternative
brief, or” prepare a pro se brief. Anders Brief, Appx. D, 10/1/20, at 4. On
January 5, 2021, this Court received Appellant’s pro se Letter to the Superior
Court in Response to Anders Brief.
II. Petition to Withdraw and Anders Brief
Preliminarily, we must address Plea Counsel’s petition to withdraw and
the accompanying Anders brief, both alleging the instant appeals are
frivolous. Plea Counsel must first “petition to withdraw stating that he or she
has made a conscientious examination of the record and determined that the
appeal would be frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190,
1195 (Pa. Super. 2018) (en banc) (citation omitted). Anders withdrawal may
be granted if, in addition to the petition to withdraw, counsel also files a brief
satisfying the requirements set forth in Santiago, supra. Id. at 1195-96.
This Court must then address the petition to withdraw and accompanied
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Anders brief before we may review the merits of the issues presented therein.
Id.
Counsel’s Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id. at 1196, quoting, Santiago, 978 A.2d at 316. In addition, counsel must
provide the client a copy of the Anders brief, along with a letter advising the
client of the option to retain new counsel or proceed pro se. Yorgey, 188
A.3d at 1195-96 (citation omitted). Indeed:
Anders specifically contemplates that, after counsel files the
Anders brief, an appellant may file a pro se brief. . . . [P]art of
counsel’s duty under Anders is to advise the appellant of the right
to raise points in addition to those in counsel’s Anders brief.
Thus, when conducting an Anders review, this Court will consider
not only the brief filed by counsel but also any pro se appellate
brief.
Commonwealth. v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citations
omitted). “Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court[ ] proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (citation omitted). If we agree with counsel’s assessment,
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“we may grant counsel’s request to withdraw and dismiss the appeal[.]”
Yorgey, 188 A.3d at 1196, citing Anders, 386 U.S. at 744.
Our thorough review of Plea Counsel’s submissions reveal he has
satisfied the substantive requirements of Anders and Santiago. First, Plea
Counsel submitted a petition to withdraw, stating, “[u]ndersigned [c]ounsel
has made a full and thorough examination of the record and case law to
conclude that [Appellant’s] issues are frivolous.” See Petition for Leave to
Withdraw: Anders Brief, 10/1/20, at 2-3. In addition, Plea Counsel also filed
the required Anders brief, detailing: the relevant factual and procedural
history of the case with citations to the record, Anders Brief at 7-14; his
conclusion the appeal is frivolous, id. at 16, 24; and supporting reasons for
why the appeal is frivolous, id. at 16-23, 24-28. Finally, attached to his brief
is a letter addressed to Appellant advising her of the option to retain new
counsel or proceed pro se. See Anders Brief, Appx. D, at 4; see also
Yorgey, 188 A.3d at 1195-96. We may therefore proceed to conduct an
independent review of the record to determine whether the appeal is wholly
frivolous.11 See Goodwin, 928 A.2d at 291. In his Anders brief, Plea
Counsel raises the following issues:
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11While we conclude Plea Counsel’s submissions comply with the substantive
requirements of Anders and Santiago, we clarify the technical requirements
of the Anders brief. Counsel’s brief must include either a reference to
anything in the record arguably supporting the appeal, or an affirmative
statement “there were no such references for him to make.” Santiago, 978
A.2d at 360 (“Without one or the other, we are not assured, as Anders
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[1] Is [Appellant’s] claim that there was insufficient evidence to
convict her of each count of summary disorderly conduct
frivolous?
[2] Is [Appellant’s] claim that the verdict on each summary
disorderly conduct was against the weight of the evidence
frivolous?
Anders Brief at 6.
III. Sufficiency of the Evidence
Plea Counsel concludes it would be frivolous to challenge Appellant’s
convictions for summary disorderly conduct on the basis of insufficient
evidence. Anders Brief at 16. He asserts Appellant’s conduct “‘disturb[ed]
the peace and dignity of the community.’” Id. at 17, citing, Commonwealth
v. Greene, 189 A.2d 141, 144 (Pa. 1963). Plea Counsel also submits
precedent requires affirmance in cases of “multiple, prolonged and vocal
disagreements with a neighbor[,]” which occur in public areas. Id. at 22. In
response, Appellant simply asserts, “[t]he evidence used is insufficient.”
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requires, that counsel fully performed his duty as Santiago’s advocate[.]”).
Here, we are satisfied Plea Counsel has “fully performed his duty as
[Appellant’s] advocate to independently search the record as a trained
advocate with an eye to uncovering appealable error[.]” See Santiago, 978
A.2d at 360. Plea Counsel’s reference to his “full and thorough examination
of the record[,]” is evidenced in his “candid assessment of the complete lack
of merit in his client’s case,” thereby satisfying the substantive requirements
of Anders and Santiago. See Petition for Leave to Withdraw: Anders Brief,
10/1/20, at 2-3; see also Santiago, 978 A.2d at 359. Our independent
review of the record confirms Plea Counsel has fulfilled his professional
obligations as Appellant’s counsel. See Commonwealth v. Cox, 231 A.3d
1011, 1016 (Pa. Super. 2020) (in context of Anders withdraw, this Court may
overlook procedural deficiencies in appellate court filings to ensure Anders
counsel has not overlooked non-frivolous issues).
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Appellant’s pro se Letter to the Superior Court in Response to Anders Brief,
1/5/21, at 4.
Our independent review of the trial court proceedings is guided by well-
established principles:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Goodwin, 928 A.2d at 291 (citation omitted). For ease of review, we also set
forth the relevant statutory provisions:
(a) Offense defined.—A person is guilty of disorderly conduct if,
with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior; [or]
* * *
(4) creates a hazardous or physically offensive condition by
any act which serves no legitimate purpose of the actor.
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18 Pa.C.S. § 5503(a)(1), (4).
Here, the trial court explained:
[T]he Commonwealth presented evidence that [Appellant]
threatened and shouted profanities towards [Complainant] from
the third-floor window, [and] exposed her breast and licked it in
an apparent threat towards [Complainant]. [Appellant] was so
loud in her shouting at 2:00 a.m. such that a neighbor called the
police. Furthermore, the Commonwealth presented evidence that
[Appellant] called [Complainant] from a blocked phone number
and threatened to “kick her ass.”
Trial Ct. Op., 6/29/20, at 4-5.
Based on our independent, comprehensive review of the trial court
proceedings in the light most favorable to the verdict winner, see Goodwin,
928 A.2d at 291, we decline to find the evidence was insufficient to support
Appellant’s convictions for disorderly conduct. Not only does Appellant
concede she “did by provocation breach the peace of the community[,]” the
testimony introduced at trial reveals she participated in, if not instigated, three
separate events resulting in “vociferous shouting and yelling which
provoke[ed] retaliation and public commotion[.]” See Appellant’s pro se
Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2; see
also Greene, 189 A.2d at 144. Pertinently, Appellant was subject to a no-
contact order, imposed as a result of the parties’ contentious history. N.T.
Trial, at 15-16, 26. With regard to the Workplace Incident, Appellant
screamed profanities from her third-floor window before Complainant left for
work, id. at 24-28, and then solicited the assistance of her daughters in
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traveling to Complainant’s workplace where Complainant’s boss and friend
had to restrain the parties from attacking each another. Id. at 28-29. Not
only was Complainant’s boss placed in the middle of the parties’ dispute, he
was spit on three times. Id. at 43. The parties’ dispute continued into the
early hours of the morning. Id. at 30. The early morning behavior caused
such a disturbance a neighbor phoned the police and the responding officer
heard screaming from around the corner. Id. at 11, 30. Appellant was brazen
enough to continue screaming “profanity” and “nasty stuff” in the presence of
the Wilkinsburg Police Department, at 2 o’clock in the morning. Id. at 13, 31.
And yet, the dispute did not end. The very next day, another argument
between the parties resulted in a threatening telephone call. Id. at 34.
In consideration of the foregoing, the evidence is not “so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances.” See Goodwin, 928 A.2d at 291. We also
emphasize the trial court was free to believe all, part, or none of the testimony
introduced at trial. Id. Thus, the evidence was sufficient to establish
Appellant recklessly created the risk of public inconvenience, annoyance, or
alarm by engaging in fighting, threatening, or violent behavior. See 18
Pa.C.S. § 5503(a)(1). The evidence also sufficiently establishes Appellant
recklessly created a hazardous or physically offensive condition which served
no legitimate purpose. See 18 Pa.C.S. § 5503(a)(4); see also Greene, 189
A.2d at 144. Thus, after an independent review of the record, we conclude
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Appellant’s challenge to the sufficiency of the evidence is wholly frivolous.
See Goodwin, 928 A.2d at 291.
IV. Weight of the Evidence
Plea Counsel also avers Appellant’s challenge to the weight of the
evidence is equally frivolous. Anders Brief at 24. He maintains a “mere
conflict in testimony” is not adequate grounds to award a new trial, id. at 25,
quoting, Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000), and
Appellant cannot show that “the trial court abused its discretion by ignoring
evidence of greater weight.” Id. at 27-28, citing, Commonwealth v.
Champney, 832 A.2d 403 (Pa. 2003). In response, Appellant argues, “the
weight of the evidence and sentencing was not fair.” Appellant’s pro se Letter
to the Superior Court in Response to Anders Brief, 1/5/21, at 2. She
adamantly denies the allegations asserted by the Commonwealth, and
maintains her shouting profanity and communicating a threat over the
telephone were all done in self-defense. 12 Id. at 3-4.
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12 Appellant also advances two other arguments. The first is a challenge to
the effectiveness of her trial counsel. Appellant’s pro se Letter to the Superior
Court in Response to Anders Brief, 1/5/21, at 2-4. As the instant case
appears before this Court on direct appeal, Appellant’s ineffectiveness claim
is misplaced, and must be advanced pursuant to the Post Conviction Relief
Act. See 42 Pa.C.S. §§ 9541-9546; see also Commonwealth v. Grant, 813
A.2d 726 (2002) (confirming that, absent certain unusual circumstances,
ineffectiveness claims are to be raised via the PCRA and not on direct appeal).
The second claim is that she “was charged with [h]arassment twice for the
same incident[,] and found guilty, causing Double Jeopardy.” Appellant’s pro
se Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2-4.
We note our review is limited to those facts which are contained in the certified
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Before we independently evaluate the legitimacy of Appellant’s weight
challenge, we may, sua sponte, assess whether the challenge properly invokes
this Court’s jurisdiction. See Commonwealth v. Capaldi, 112 A.3d 1242,
1244 (Pa. Super. 2015) (citation omitted).
[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Failure to properly preserve the claim
will result in waiver, even if the trial court addresses the issue in
its opinion.
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)
(citations omitted). A post-sentence motion containing a challenge to the
weight of the evidence must be filed within 10 days after the imposition of
sentence. See Pa.R.Crim.P. 607, 702(A)(1). Ordinarily, failure to file a post-
sentence motion within the applicable time constraints results in waiver of the
issues presented therein. Commonwealth v. Wrecks, 931 A.2d 717, 719
(Pa. Super. 2007).
However, a defendant may request nunc pro tunc consideration of an
untimely post-sentence motion within thirty days of the judgment of sentence.
Capaldi, 112 A.3d at 1244. A defendant seeking relief nunc pro tunc must
request consideration of a post-sentence motion nunc pro tunc and the trial
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record, and we may not stray dehors the record. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here,
the certified record is entirely lacking in support of Appellant’s challenge. Her
claim is therefore not properly before the Court. Id.
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court must expressly grant the nunc pro tunc relief. Id., citing
Commonwealth v. Dreves, 839 A.2d 1122, 1128-29 (Pa. Super. 2003) (en
banc). Moreover, “a trial court’s resolution of the merits of [a] late post-
sentence motion is no substitute for an order expressly granting nunc pro tunc
relief.” Id. (citation omitted).
Applying the preceding standards, we deem the present challenge
waived. First, Appellant’s sentence was imposed on February 10, 2020. She
filed a post-sentence motion challenging the weight of evidence 28 days
later, on March 9th. Appellant also filed a separate and distinct NPT Petition.
Thus, by filing a separate petition requesting relief nunc pro tunc and detailing
the circumstances giving rise to the late filing of her post-sentence motion,
Appellant has satisfied the first prerequisite to receiving nunc pro tunc relief.
See Capaldi, 112 A.3d at 1244.
Even so, Appellant has not secured from the trial court an express grant
of nunc pro tunc relief and has therefore failed to fulfill the second
prerequisite. See Capaldi, 112 A.3d at 1244. On March 10, 2020, Appellant’s
NPT Petition was denied. See Order, 3/10/20. The trial court denied
Appellant’s NPT Petition by striking the word “granted” from the proposed
order and instead wrote, “denied.” See id. Similarly, the trial court struck
the word “granted” from the proposed order attached to Appellant’s untimely
post-sentence motion and cited to the order denying Appellant’s NPT Petition.
Id. Critically, the certified record on appeal contains no order from the trial
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court expressly granting Appellant nunc pro tunc relief.13 See Capaldi, 112
A.3d at 1244. We are therefore without jurisdiction to address Appellant’s
challenge to the weight of the evidence.14 Id. For the foregoing reasons, we
conclude Appellant’s weight claim is frivolous.
Additionally, our independent review of the record reveals no non-
frivolous issues that may be brought on appeal.
Petition to Withdraw granted. Judgments of Sentence Affirmed.
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13 Our complete review of the record reveals the trial court proceeded as
though the NPT Petition had been granted. See Trial Ct. Op., 6/29/20, at 3.
However, stare decisis compels our conclusion that nun pro tunc relief was not
expressly conferred. Notwithstanding the trial court’s resolution of Appellant’s
untimely post-sentence motion, as discussed above, the certified record on
appeal contains no express grant of nunc pro tunc relief. See Capaldi, 112
A.3d at 1244.
14 We acknowledge Plea Counsel’s Anders Brief contained no mention of the
trial court’s treatment of the NPT Petition or the absence of an express order
granting nunc pro tunc relief. Nonetheless, we find this omission
inconsequential to our disposition of the present appeal because Appellant’s
underlying weight claim would be frivolous. Our thorough review of the record
does not occasion a finding the trial court abused its discretion in the weight
afforded the testimony adduced at trial, nor were its judgment manifestly
unreasonable. See Widmer, 744 A.2d at 753. For these reasons, if
jurisdiction had been properly invoked, we would conclude Appellant’s weight
claim is frivolous. See Yorgey, 188 A.3d at 1196.
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J-S55028-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2021
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